Archive for evidence

I am in a custody battle in California. My ex left an awful and damning voice mail message on my home answering machine. Can I use the recording in court as evidence?

By Shawn Weber, CLS-F*

In short, yes. While there are strict rules regarding the use of unlawful recordings of telephone conversations, there is no prohibition against recording a voice mail message. Ostensibly, the person who left the message knew that the message would be recorded, so you do not run afoul of the rules on unlawful wiretapping.

Some attorneys may attempt to object to the admission of the recording because it is hearsay. In other words, it is an out of court statement offered to prove the truth of the matter stated.  (See California Evidence Code section 1200.)  Normally, such statements are prohibited to be used in evidence.  However, in some cases, there are exceptions.  This is one such case.

Voice Mail Message

Statements made by a party to the action are excluded from the hearsay rule.  Because the statements made on the voice mail message are made by a party opponent (your ex) there is no concern about hearsay. It is admissible as an exception to the hearsay rule under California Evidence Code section 1220. See also People v. Horning (2004) 34 Cal.4th 871, 898 n5.

The only other concern you may have in getting the recording admitted is the issue of “authentication”. In other words, you have to show that the recording actually is what you purport it to be. You can probably take care of this by presenting your own testimony that you are familiar with your ex’s voice and that it was he or she who left the message. Also, you will want to indicate that you are familiar with the workings of your voice mail system and that this was left by your ex on your voice mail system. You can also get an admission from your ex by use of a document called a “Request for Admission” asking your ex to admit that it is an authentic recording of his or her voice left on your voice mail.

You should have an attorney work with you on how best to present the recording to the court as evidence. There are rules about how something must be presented. The rules are technical and a screw up could cause the evidence to be excluded.  However, getting something like a recording into evidence can be very effective.  A judge actually hearing the voice of the person can be very powerful and persuasive evidence.

The corollary to this post is that a person leaving a voice mail message, email or text message should be very careful.  A person should just assume that any communication made with his or her ex or child could end up in front of the judge.  Beware of social media posts as well.  Many custody battles are lost over stupid communications.  Just don’t give yourself the hassle.  In my own cases, I often recommend that my clients have me review their email messages BEFORE they are sent to make sure that they have the intended effect and to ensure that there are no unintended consequences.

Here’s an AWFUL voice mail message left by actor Alec Baldwin on his daughter’s phone.  This unfortunate message was a demonstration that Baldwin had SERIOUS anger management issues.  Needless to say, it caused him a lot of problems.  Now the recording is infamous.  Sadly, this kind of thing is not unusual.  Just follow my mother’s advice, “If you can’t say something nice, don’t say anything at all.”

(Just a warning, the language is strong.)

If you need help in preparing evidence for family court or with coparenting communication concerns, contact San Diego child custody attorney Shawn Weber at 858-345-1616 or see our website at

*Certified Specialist – Family Law

The State Bar of California Board of Legal Specialization.

What effect does adultery have on a California divorce?

Shawn Weber, Attorney and Mediator

The short answer is “none” because California is a “no-fault” state.

This means that evidence of adultery, as a general rule, is not permissible in court as it is not relevant. However, perhaps that answer is a bit simplistic. Evidence of an affair can come in if it is used to prove a fact that is relevant.

For example, I had a case several years ago where the husband had used community property funds to purchase expensive jewelry for his mistress. I represented the wife and brought the evidence of the jewelry purchase into evidence – not to show that there was adultery, but that the Husband had violated his fiduciary duties by secretly purchasing the very expensive jewelry with community property funds. In another case, I was able to bring evidence of of an affair in where the opposing party had invited the parties’ five-year-old child to sleep between her and her boyfriend. Again, I did not bring the evidence in to show that there was cheating. Rather, the evidence came in to show that the minor child was inappropriately being exposed to her mother’s sexual behavior.

So, the rule in a nutshell is that evidence of adultery generally does not come into evidence because the fact that an it occurred is not relevant in a no-fault state. However, where the evidence that shows that adultery occurred also shows that something occurred that is relevant, the evidence can come in, but only to show the truthfulness of the relevant fact and not the alleged adultery. (That the judge learns of the adultery as a consequence is a nice little bonus.) Importantly, the mere fact that adultery occurred cannot be considered by the court in dividing property, dividing debt, awarding support, awarding attorneys’ fees or determining child custody in a divorce.